Taken By The State
The legislation behind uplifting children
An investigation by Newsroom has raised questions about how children are being treated under laws designed to protect them. Here’s a brief explanation of the legislation and how it works.
So, what are parenting orders, warrants to uplift, and without-notice applications?
Essentially, a parenting order is available through the Family Court for parents or guardians who disagree over children’s care arrangements.
It determines who looks after the children, and if necessary, when one parent or guardian is allowed to see them.
Michelle Duggan, who chaired the Law Society’s family law section, said parenting orders can be both simple or complex.
“They can be pretty detailed, some parenting orders run to pages and cover everything, even children’s birthday parties, while others can be very brief.”
If one parent breaches a parenting order, say they refuse to hand back the child on the specified day, a warrant can be issued under the Care of Children Act by a judge.
They are applied for by the aggrieved parent or guardian and when one is approved, a social worker or police officer may remove the child using “reasonable force” and deliver them to the eligible caregiver or authority named in the warrant.
Figures from the Ministry of Justice show in the 12 months to June 30 last year, 600 warrants were issued under section 72 and 73 of the act. A similar amount were issued in the previous 12-month period.
Before this, the number of warrants was significantly lower – about 400 were issued across the equivalent 12 month periods between 2012 and 2014.
For this type of warrant to be issued the child does not have to be in danger, although a parent can indicate if they are when making an application - as happened in one of the cases highlighted in Newsroom’s investigation.
A warrant can be made as a without-notice application, which means the responding party is kept completely unaware of the application and is subsequently unable to dispute any interim order resulting from it.
As soon as it is signed off, police or a social worker are able to uplift the relevant children.
On the Ministry’s website, it states these applications are for when there is a risk to someone’s safety or a child is being taken out of New Zealand without permission.
Wellington Family Law partner Caroline Hannan says warrants are a final option and under the act should only be applied for if everything else has already been tried.
“It’s not just a way of saying ‘Oh, they were late sending the kids back, I want a warrant’, it’s a measure of last resort.”
When an application is made for a warrant, it is sent to a judge electronically through the “eDuty” system, which was introduced in 2013.
An on-duty judge is able to review the application and decide whether an interim order should be granted.
For clarity, there are different types of uplift warrants issued under the Oranga Tamariki Act that are not for parental disputes.
One of these, a Place of Safety Warrant, can only be applied for in writing by the police or Oranga Tamariki and is issued if a judge believes a child is, or is likely to be, seriously neglected, abused, or seriously harmed.